JLA "Stopping" Charge

Coupon-mad

FM should repeat the response they already sent to VCS and ask for ADR. (google it).

The courts expect parties to try to narrow the issues and for a trader to offer ADR, so the idea is to make the FM appear reasonable and the C not so.  The hope is they refuse to offer ADR and fob off the FM then that can be used in evidence later.

The lack of keeper liability certainly helps if the D wasn't driving but if they were, they are best defending as driver and stating their story.

Router66

Thanks for the advice C-M...
There has been no admission as to who the driver was and additional details came to light from the SAR to VCS. Therefore, would updating the response sent to VCS, rather than repeating it, be a better way forward? (Will post for critique?)
No problem with requesting ADR; there seem to have been a few posters who have gone that route without regret.

Coupon-mad

I am not saying accept ADR; the very last thing you want is non-standard IAS (considered a rip off kangaroo court) but at this stage, the FM should ASK for ADR.

Big difference.

And yes, write it as an update.

Router66

Thanks Coupon-Mad, your advice and patience is much appreciated.
A letter to Elms has been drafted advising that a replacement response will be submitted to VCS. (should I post?)  
Not sure where it has been indicated ADR would be accepted? Sorry if I am hard work!
One of the updates to the LBC response could be the non-delivery of the NtD which prevented access to ADR and discount for early payment (although neither would have been considered). Do you think that is worth mentioning?

Router66

To bring you up to speed, below is the current situation, as the Parking Operator sees it, slightly tweaked to minimise pedantry.

"We are a parking operator at Cuckooland Airport and have a photo of a car “stopped” whilst waiting to pull out to join traffic. DVLA provided details of the RK and the RK gave us your name. You have not admitted being the driver but we don’t care. The RK has not paid us so we will chase you. Enclosed is a final demand for payment of £160. We don’t give a monkey’s about PoFa 2012 so we are not going to send you a Notice to Driver or offer you a discount for early payment and don’t even think about appealing because no-one will listen. If you don’t pay we will take you to court and tell the judge you were driving. The judge will have to believe us as we don’t have to prove anything. If you still don’t pay you will get a CCJ and your life will be trashed."

I have drafted a defence to the LBC but I am not sure it contains anything to challenge the above. Should I post it just in case there is a glimmer of hope? 

Jenni_D

LBC response can simply be "HAHAHAHAHAHAHAHAHA!!!! Noobs! Bring it!"  

Router66

Thanks Jenni_D, will give it a go...Nothing to lose!
If anyone thinks there is anything worth adding from my version, hopefully they will let me know?

It is hereby admitted that I am the keeper of the vehicle but it is not admitted that I was the driver of the vehicle at the material time.
I am not the Registered Keeper; for procedural purposes I am to be considered as hirer or lessee of the vehicle, as defined in the Protection of Freedoms Act 2012.

 
1. VCS is a member of Independent Parking Community (IPC) which is an Accredited Trade Association (ATA).

This membership allows VCS to access DVLA records on condition that VCS abides by the IPC Code of Practice (CoP).

VCS has failed to adhere to the Code of Practice on a number of counts, specifically, but not limited to:

(a) Failure to provide a Notice to Hirer within 21 days from being notified of the keepers details.

(b) Failure to inform the Hirer of the discount provided for prompt payment.

(c) Failure to inform the Hirer of the arrangements under which disputes or complaints may be referred by the keeper to the IPC.

(d) Failure to inform the Hirer that any unpaid parking charges may be recovered from them.

(e) Failure to identify the creditor

VCS has failed to engage with either the Registered Keeper or the Keeper of the vehicle, other than to send out template demands for payment with increasing threats and aggressiveness, either directly from their office or from the offices of various debt collection agencies, engaged on a no win, no fee basis.

2. The first notification of the parking charge was received on 2nd July 2019 in the form of a Final Reminder; the reminder advised that a Notice to Keeper was issued on 29th May 2019; however this was not received. The Registered Keeper and the Keeper both highlighted this omission in their communications to VCS dated 11th July 2019. VCS did not act on this information; instead two further demands for payment were issued to the Registered Keeper on 15th and 30th of July. When this attempt to obtain payment from the Registered Keeper failed, VCS issued a Notice to Driver (NtD) in the name of the Keeper; however the NtD was also not received...The Keeper only became aware of the NtD after receiving the SAR response.
It is averred that both the NtK and NtD were not received by the Registered Keeper, or the Keeper, due to being withheld, either deliberately or through procedural incompetence.

3. The NtD is invalid in that it claims the Registered Keeper has named the Keeper as the driver of the vehicle; since the Registered Keeper is a Company it can only provide the name of the Keeper/Hirer of the vehicle. The SAR confirms that the contact details provided to VCS by the Registered Keeper on 11th July 2019 were those of the Keeper, not the Driver. Furthermore the NtD was not issued within the timeframe stipulated by the IPC Code of Practice.

The NtD is also not the appropriate document for service, in order for VCS to further their claim; VCS should have issued a Notice to Hirer/Lessee as per the requirements of the IPC Code of Practice (refer point 1(a) above).

It can be established from the SAR response that a Notice to Hirer has not been issued and therefore no invoice exists for VCS to rely on, in order to prove their claim.

4. The very sparse Particulars of Claim suggest that a contract was agreed between the driver of the vehicle and VCS by the act of signage being brought to the attention of the driver on entering the land of Liverpool John Lennon Airport. However, it is not possible for the driver to read, consider and accept the terms of the signage, which VCS relies upon, from a moving car.
Stopping to read a sign constitutes the very contravention for which this charge has arisen – ‘No Stopping’. Therefore, this supposed contract is paradoxically impossible to accept without breaking.

Furthermore, the term “No Stopping”, as written on the signs, is forbidding and therefore not an offer to stop and pay a charge. Therefore, no contract to pay a charge in the event of stopping was agreed to by the Driver and so no charge can be brought about by doing so. Precedence in Case Law can be found in CS036 PCMUK v Bull et al B4GF26K6.

5. The images provided by the SAR show the driver waiting to pull out from an entrance, to join a road on which passing traffic has priority. The roadside red lines and any signage do not come into play as “avoiding an accident” is an exemption in no stopping zones. Furthermore, on the 1st February 2020, I made a special trip to the site to see the layout for myself. I obtained an alternative photo image of the area where the vehicle stopped; this shows that the gate opening extends beyond the red markings, which would allow any lost driver the possibility of turning round outside of the designated area where stopping is prohibited.

6. The “demand for payment” documents currently include an additional £60 for debt collection. The £60 add-on represents an attempt at double recovery, which may be considered an abuse of process, and invite the Court to strike out the claim ab initio for that reason.

7. As per Box I of Annex 1:

7.1 Please provide a copy of the contract between VCS and the landowner to prove that a contract is in place, allowing VCS to undertake legal proceedings on behalf of the landowner. Please note that a Witness Statement about the existence of a contract is insufficient.

7.2 Please provide a map showing the boundaries of the site VCS is contracted to control.
7.3 Please confirm under what legislation I am being pursued and under what capacity (Keeper, Hirer or Driver?) If driver, please provide undisputable evidence that I was the driver of the vehicle at the material time.

Under no circumstances should court action be initiated until I have confirmed to VCS that Pre-action Protocol has been satisfied and the LBC is therefore fully compliant.

KeithP

Router66 said:

1. VCS is a member of Independent Parking Community (IPC) which is an Accredited Trade Association (ATA).

Change that to...
1. VCS is a member of International Parking Community (IPC) which is an Accredited Trade Association (ATA).

Router66

Good spot Keith P, thank you. I have also followed the advice of Redx from one of his posts and swapped all the "I, Me, My" etc.
for "the defendant" (thank you Redx)
If no other feedback is received overnight the defence will be sent off tomorrow. 

Coupon-mad

The only other thing to do, if your company has not already, is to complain to your MP and show them the pics of the car giving way at a junction, and ask them to write to the Airport...

...and to Mr Gove at the DLUHC about the delayed new statutory framework and code of practice which will come in next year, and ask what the Govt is doing about the predatory nature of immediate 'no stopping zone' ticketing which includes people stopped at barriers, stop signs, zebra crossings and crossroads.

This is some of the worst rogue practice and now is the exact time for MPs to lobby the DLUHC and show evidence if what is still happening.

MPs providing evidence of the worst crap is needed now in 2021, IMHO, because Mr Gove is new to that Govt Department and my worry is, that half the stuff said in Parliament in 2018 is unknown or forgotten by the new DLUHC Ministers and things like the abusive way camera cars are used to extract money for trivial or imaginary breaches may not be on their radar at all and nothing will change.